R. v. Maracle, 2015 ONSC 600

COURT FILE NO.: 13-143-00

DATE: 20150126

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Edward Maracle

BEFORE: The Hon. Mr. Justice Robert B. Reid

COUNSEL: Nicolas Cake, Counsel, for the Crown

Sarah D. Dover, Counsel, for the Accused

HEARD: December 8 and 9, 2014

DECISION ON APPLICATION

1Edward Maracle stands charged with attempted murder as well as various firearms offences, assault and uttering a threat.

2The Crown has made an application to have utterances by the accused to Sgt. Tim Bomberry and Constable Gordon Hill declared voluntary so that they may be tendered as evidence at trial.

3The Crown bears the onus of proving beyond a reasonable doubt that the utterances were made voluntarily.

4There was no defence challenge alleging a violation of Mr. Maracle’s rights under section 10(b) of the Charter.

5For the reasons set out below, I am satisfied that the Crown has discharged its onus and has proven that Mr. Maracle’s utterances were voluntary beyond a reasonable doubt.

Factual background:

6On June 14, 2012 at approximately 5:20 PM, Sgt. Tim Bomberry and Constable Gordon Hill of the Six Nations Police Service were dispatched to 991 Seneca Road in Tuscarora Township on the Six Nations reservation. They arrived a few minutes later.

7There was a report that the accused, who resided at that address, was intoxicated and had fired rifle shots from his house toward people congregated at a neighboring residence.

8The officers were in uniform and driving a marked police vehicle. There was no issue about them being persons in authority.

9On arrival in the vicinity, the officers were directed by people at 1005 Seneca Road toward the Maracle residence, indicating that Edward Maracle was in the house.

10The officers drove into the driveway at 991 Seneca Road. They approached a deck on the north side of the house. The side door to the house opened onto that deck. There was a window in the door.

11When part way up the stairs to the deck, Sgt. Bomberry saw Mr. Maracle, who he recognized, look out the window of the door, and then retreat back inside.

12Sgt. Bomberry called “Ed”, saw the accused look out the window again, then gestured to him to come out. Mr. Maracle almost immediately came out the door onto a small landing above the deck. The officer’s first concern was to de-escalate the situation and ensure that Mr. Maracle was not holding a firearm. He asked: “Ed, what’s going on?” Mr. Maracle responded with words to the effect that: “I don’t give a fuck about crack dealers. Do you like crack dealers in your neighbourhood? This is my fucking ‘hood.”

13Mr. Maracle was described as being upset, angry, and intoxicated. According to both Sgt. Bomberry and Constable Hill, Mr. Maracle showed signs of impairment: slurred speech, unsteadiness on his feet, and an odour of alcohol on his breath. Constable Hill recalled that his eyes were bloodshot.

14Sgt. Bomberry walked Mr. Maracle across the deck and away from the house. Mr. Maracle continued ranting angrily about crack dealers living next door, and his desire that they not be in his neighbourhood. The remarks continued and were generally the same as the first utterances made when Mr. Maracle came out of the house. Sgt. Bomberry’s comments to him were in the nature of small talk, designed to calm him.

15In the meantime, Constable Hill had gone next door to speak to the people at 1005 Seneca Road. He returned, signalling Sgt. Bomberry that shots had been fired. At that point, Mr. Maracle was placed under arrest for careless use of a firearm, and handcuffed. He was cautioned and given his rights to counsel. This was at about 5:41 PM. He did not respond directly, but continue to talk angrily and with slurred words about the neighbours and crack.

16Sgt. Bomberry assisted Mr. Maracle down the steps from the deck. A personal search was performed by the sergeant in the presence of Constable Hill. Then the accused was placed into the rear of the police vehicle. He stayed there for about an hour before he was transported to the police detachment. The vehicle left the scene at about 6:58 PM.

17While the accused was in the police vehicle and before transport to the detachment, the sergeant searched Mr. Maracle’s residence. When asked in cross-examination why he did not ask for permission, he responded that he thought there were exigent circumstances sufficient to allow him to enter without consent to ensure there was no other victim. He also admitted that he did not think Mr. Maracle would understand the request due to his intoxication, and based on his ranting about the neighbouring crack dealers.

18Once the vehicle arrived at the police detachment at about 7:03 PM, Mr. Maracle was observed by Sgt. Bomberry lying down and sleeping in the back seat.

19The accused did not resist the police officers at any time and always followed their directions.

20At the detachment, a decision was made to lay a charge of attempted murder, and as a result of that change in jeopardy, the accused was re-cautioned and given his right to counsel. When asked whether he understood, he said: “You got a crack dealer lawyer here? I don’t give a fuck. Do what you have to.” When asked a second time if he wanted a lawyer, Mr. Maracle replied: “Blah blah blah, I’m a fucking retard. Write that down.” At 7:09 PM he was placed into a holding cell. Sgt. Bomberry concluded that the accused heard and understood the caution and right to counsel.

21Constable Blaine Martin was present at the detachment and observed the same signs of impairment exhibited by Mr. Maracle as seen by the other officers when they were at the Maracle residence.

22Within about an hour of his being placed into a cell, there was a report that Mr. Maracle was trying to hang himself with his shirt. Constable Martin asked for his clothing and Mr. Maracle provided it to him without incident. He had no problem removing his pants or passing them through the bars to Constable Martin. About 10 minutes later, Constable Martin heard the accused yelling: “you want my pants”, although the officer was unsure why those words were being said.

Applicable Law:

23The confessions rule applicable in Canada was articulated by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. That case established that in order for statements made to persons in authority to be admissible, the Crown must establish beyond a reasonable doubt that the will of the accused had not been overborne by any one of four factors: inducements, oppressive circumstance, lack of an operating mind or through police trickery. As well, the contemporary confessions rule requires a contextual analysis of all of the conditions surrounding the statement. Justice Iacobucci noted at paragraph 33 that it is important to keep in mind that the twin goals of the confessions rule are to protect the rights of the accused while not unduly limiting society’s need to investigate and solve crimes.

24The only one of the four factors set out in Oickle that was contested by the defence in this case was whether the accused lacked an operating mind at the time the utterances were made by virtue of his prior consumption of alcohol.

25I agree that there is no evidence to suggest that any of the other three factors, namely the presence of inducement, oppressive circumstance, or police trickery were of concern in this case.

26Without an “operating mind”, an individual cannot be said to make a statement voluntarily and thus the operating mind requirement is one facet of the voluntariness inquiry. Statements made where the person does not have an operating mind are excluded in order to protect both the rights of the accused and the fairness of the criminal justice system.

27At paragraph 63 of Oickle, Justice Iacobucci adopted a statement by Justice Sopinka in R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, that the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”. The wisdom of the person in making the statement is not the issue.

28As a matter of common sense, a person who is in a state of extreme intoxication may not meet the requirement of having an operating mind. A decision on whether because of extreme intoxication the person is not aware of what he is saying, that he is saying it to police officers and that it can be used to his detriment, is necessarily based on the particular circumstances of the case.

29In R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, the Supreme Court of Canada considered a case where the accused was interrogated while intoxicated. She had been charged with the murder of her husband and gave an inculpatory statement following the standard police caution and right to counsel. The case was argued based on a breach of the accused’s Charter rights under section 10(b) and the court held at page 396 that: “At the very minimum, it was incumbent on the police to delay their questioning and the taking of the statement until the accused was in a sufficiently sober state to properly exercise her right to retain and instruct counsel and to be fully aware of the consequences of waving [that] right.”

30The reasoning in Clarkson is not directly applicable to this case. The Charter requirements are more stringent than the test set out in Oickle as to an operating mind under the common law voluntariness principles to which I have referred.

31In the minority concurring opinion in Clarkson, a test similar to that in Oickle was articulated by Justice McIntyre who wrote at page 399: “It must be observed that common sense would dictate that a very high degree of intoxication would be required to render such a statement inadmissible.” [Emphasis added.] I agree with his comment.

Analysis:

32It is undisputed that Mr. Maracle was under the influence of alcohol at the time his utterances to the police were made. The fact-driven question is whether he was in a very high degree of intoxication such that he was not possessed of an operating mind.

33There was no objective measurement of impairment such as a breath or blood test. Therefore the determination must be made subjectively based on the witnesses’ observations.

34The police witnesses testified that they observed what can be considered to be standard indications of impairment in Mr. Maracle: slurred speech, unsteadiness on his feet, bloodshot eyes and a strong odour of alcohol on the breath. However, standard signs of impairment do not assist in determining the degree of intoxication.

35Mr. Maracle was generally responsive to the directions given to him by the police. Initially, he came out of his residence when requested by Sgt. Bomberry. He was co-operative with the police throughout: there was no resistance to the initial physical direction by Sgt. Bomberry, leading him away from the residence door and eventually down the steps to the driveway and to the police vehicle. There was no resistance to the personal search. At the police detachment, there was no lack of co-operation in the booking process, or later when Mr. Maracle was asked to hand over his shirt and pants. Mr. Maracle’s responsiveness contra-indicates a very high degree of intoxication.

36He was lucid. Despite being described as initially very angry and ranting, Mr. Maracle was able to articulate the subject of his concern, being the presence of what he understood to be either crack dealers or crack-heads in his neighbourhood. It is reasonable to conclude that he was sharing the information knowing that Sgt. Bomberry was a police officer, drawing attention to the perceived illegal activities. At the detachment, his responses to being advised of his right to counsel may not have been wise, but they showed his understanding of the potential for the police to write down, and presumably use his comments to his detriment. Lucidity is not consistent with a very high degree of intoxication.

37He was ambulatory. Although there was evidence of unsteadiness, there was never a time when Mr. Maracle was “falling down drunk” or when he could not manage to move from place to place independently, albeit when he was in police custody they were present to assist him. His ability to walk does not indicate a very high degree of intoxication. In the cells, he had no physical difficulty removing his pants and handing them over as requested.

38There was evidence from Sgt. Bomberry that Mr. Maracle fell asleep in the back of the police vehicle, although the other officers did not confirm that information. Regardless of the conflict in the evidence, falling asleep does not necessarily indicate a very high degree of intoxication especially since Mr. Maracle was in the police vehicle awaiting transport for over one hour. Likewise, it is not possible to determine whether the unsuccessful attempt at suicide in the detachment holding cells was the product of an organized mind, or the result of extreme intoxication. There was no evidence of Mr. Maracle’s mental health or past history that could tip the scales one way or the other on that point. The comment by Mr. Maracle about the police wanting his pants after he had already given them over does not make sense independently, but that evidence was provided by Constable Martin based on what he overheard when Mr. Maracle was not in his presence and came without context.

39Based on all the evidence as related by the police officers involved, I am satisfied that Mr. Maracle did not demonstrate a very high degree of intoxication at any point in his interaction with them. I am also satisfied that he knew what he was saying, that the utterances were made to a police officer, and that they could be used by the police to his detriment.

40Returning to the underlying principles behind the operating mind factor set out in Oickle, it is clear that the purpose of requiring an “operating mind” in the making of a statement, like the concern about police trickery, is to ensure that the person is treated fairly and that the administration of justice is not brought into disrepute through police action. This is different from the need to ensure the truth of the facts at issue, which is the policy underlying the prohibition of inducements and oppressive circumstances. In this case, I note that the utterances in question did not arise from a police interrogation where the police could have waited for the effects of alcohol to have worn off before receiving the statement. Rather, Mr. Maracle’s utterances were provided by him in response to the police presence and without prompting. Admission of the statements does not engage the public policy concerns which underpin the operating mind requirement.

41For the reasons set out above, I am satisfied that the Crown has discharged its onus and has proven that Mr. Maracle’s utterances were voluntary beyond a reasonable doubt.

Reid J.